Applicability - 'Properties liable to be attached andsold' - Mortgage decree is outside the purview of S.60(1) and Proviso thereunder.

Citation

AIR 1984 MADRAS 249

MADRAS HIGH COURT

(Principal Seat at MADRAS)

RATNAM , J.

C. R. P. No. 3637 of 1982, D/- 23 - 3 - 1984

A. Nabisa Beevi Petitioner v. The Manager, Canara Bank, Nagarcoil Respondent

Civil P.C. (5 of 1908), S.60(1) Proviso(c) - Applicability - 'Properties liable to be attached and

sold' - Mortgage decree is outside the purview of S.60(1) and Proviso thereunder.

AS a matter of plain construction of Section 60 (1) and the proviso thereunder, it is manifest that

there is an enumeration of the different kinds of properties which are liable to be attached and sold

and exempt but such enumeration is with reference to the execution of a decree by attachment and

sale. In other words, Section 60 and the proviso thereunder would come into play in all cases where

the decree is sought to be put into execution by praying for the relief of attachment and sale of all

or any one of the items of properties enumerated under Section 60 (1) in which case a claim relating

to the non-attachability of that property may also arise under the proviso to Section 60 (1). C. P.

Code. The use of the expression "such" in the proviso indicates that the attachment or sale from which

the exemption is granted relates to execution of a decree. Though the expression used between the

words "attachment" and "sale" is "or", in the context, that expression has to be construed as "and'',

as otherwise, the exemption granted under the several clauses of the proviso will have no meaning at

all. The proviso operates in the nature of an exception and catalogues

such properties and rights not liable to attachment or sale or in other words, which are neither liable

to an attachment nor sale.

 (Para 4) 

In case of a mortgage decree the decree itself having directed the sale owing to the non-payment of the

amount, there is no need or necessity to attach the property in execution of such a mortgage decree, but

the property is sold through Court in satisfaction of the decree. It would, therefore, be open to a decree

holder to bring to sale even the properties enumerated under the proviso to Section 60 (1), C. P. Code,

pursuant to the final decree for sale granted in his favour without resorting to attachment or sale. This

establishes that in cases where the sale of the property is directed by decree itself and no attachment

in execution of such a decree is necessary, there is no scope for invoking either Section 60 (1), C. P.

Code, or the exemption enumerated in the proviso to Section 60 (1), C. P. Code. Case law discussed.

 (Para 5) 

Cases Referred Chronological Paras

AIR 1974 Ker 78 3, 5

AIR 1961 SC 589 3

AIR 1945 Lahore 123 (FB) 3, 5

AIR 1944 Lahore 29 4

AIR 1938 Nag 544 5

AIR 1932 Mad 716 5

AIR 1924 All 328 (FB) 5

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